KELLNER & KELLNER

In the Family Court of Australia, Justice Strickland considered an application by the de facto husband for a stay of proceedings pending the hearing of his appeal. The de facto wife sought security for costs as a condition of any stay and also sought her costs of the proceedings.

The primary legal issue before the court was whether to grant the de facto husband's application for a stay of proceedings. Ancillary to this, the court considered the de facto wife's application for security for costs and her claim for costs of the various applications.

Justice Strickland refused the de facto husband's application for a stay, finding that a successful appeal would not be rendered nugatory if a stay were not granted and that the appeal lacked merit. The court also noted that the de facto wife challenged the bona fides of the stay application. Regarding costs, the court found that the de facto husband's conduct in the proceedings justified an order for costs in favour of the de facto wife on an indemnity basis for property settlement proceedings subsequent to prior Full Court orders. Costs for the de facto wife's application for costs and the de facto husband's stay application were ordered to be assessed on a party/party basis. The de facto wife's application for security for costs was to be dismissed unless she sought to have it heard by the Full Court as part of the appeal process.